STATE OF NEW JERSEY v. AL CALLAWAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AL CALLAWAY,

Defendant-Appellant.

June 9, 2014

Submitted April 29, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-07-1363.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Al Callaway appeals the July 19, 2012 Law Division denial of his application for post-conviction relief (PCR). For the cogent reasons stated by Judge Fred J. Theemling, Jr., we affirm.

Defendant and his two codefendants were charged in a forty-count indictment as a result of a home invasion burglary on December 2, 2007, in Jersey City. Included in the indictment were charges related to possession of a firearm. Defendant entered a guilty plea, however, solely to the first-degree robbery, N.J.S.A. 2C:15-1, during which he tied up the occupants, including children, in order to complete the crime. The judge, on the record, confirmed defendant's understanding of the agreed-upon sentence recommendation that defendant would be sentenced "to 15 years New Jersey State Prison with an 85 parole disqualifier, that carries with it a 5-year period of parole supervision."

The written plea agreement form acknowledged "that the defendant will be arguing for less time at the time of sentencing." After the prosecutor placed the agreement on the record, the judge reiterated, as reflected in the agreement, that he retained the discretion to sentence defendant "from anywhere from 10 years to 15 years . . . and because it's an 85[%] case, you have 5 years of parole supervision after you're released and if you violate the parole, you'll go back [for] 5 more years . . . ." Defendant responded in the affirmative when asked if he understood.

The judge also reviewed the specific estimated time of service in accord with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), ranging from a ten-year sentence to a fifteen-year sentence. See N.J.S.A. 2C:43-7.2. When asked each step of the way if he understood the terms of the plea agreement, defendant responded in the affirmative. He had no questions, indicated he was satisfied with his attorney, and that he knowingly, intelligently, and voluntarily waived his right to a trial.

The plea form defendant initialed and signed also spelled out that the State would argue for fifteen years subject to NERA, and defendant would "argue for less." Defendant on October 2, 2009, was sentenced to twelve years State prison. No direct appeal was filed.

Defendant's petition for PCR followed. Judge Theemling presided over oral argument on July 19, 2012, and issued a written decision on that date. Defendant contended that he had been misled by his attorney into believing a ten-year sentence would be imposed as a result of his guilty plea. In support of this position, he submitted not only his own certification, but that of family members, including his father, to the effect that they had been promised a ten-year sentence if defendant would cooperate with the prosecution of his codefendants. The plea agreement contains a provision regarding cooperation. The day his plea was accepted, the judge noted, however, that defendant's truthful testimony at trial would not be required as the codefendants were also going to plead guilty.

Defendant on appeal reasserts that his counsel was ineffective in that he misled him and his family with regard to the sentencing consequence of his guilty plea. He claims that because of the certifications submitted in support of that contention he was entitled to an evidentiary hearing, at a minimum.

Defendant raises the following points of error for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER RULE 3:22 CRITERIA.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

As Judge Theemling noted, the record clearly established that defendant knew he would be sentenced at the discretion of the court to as much as the maximum fifteen years. When the plea was entered, the court, and even the prosecutor, stated and restated the terms of the sentence. The plea form also clearly explained that although the State would argue for fifteen years, defendant had the right to argue for a lesser offense, but that ultimately, the sentence would be at the court's discretion to a maximum of fifteen years. As Judge Theemling said, "it is clear that at the time of the plea [p]etitioner knew the consequences of the plea agreement." The record simply did not support the claim that defendant's attorney had improperly misrepresented the agreement.

Defendant also argues that the PCR judge failed to consider the entire record, including defendant's certification and other exhibits, including statements from family members in support of his position. It is true that the judge did not find defendant had established a prima facie case that warranted a hearing. But the reason for the decision was the unequivocal record of the plea colloquy which did not support defendant's claims. Thus, defendant proved neither that counsel's representation fell below an objective standard of reasonableness nor that there was a reasonable probability that but for his attorney's representation the outcome would have been different.1

Accordingly, we agree with the ultimate conclusion reached by the Law Division judge. Defendant's assertions fall short of meeting the Strickland standard.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (in order to establish ineffective assistance of counsel, a defendant must demonstrate substandard representation by counsel and prejudice to the outcome as a result); State v. DiFrisco, 137 N.J. 434, 457 (1994) (in the context of a guilty plea, a defendant must prove both substandard representation by plea counsel and that, but for the inadequate representation, defendant would have insisted on going to trial instead of pleading guilty).